​​G. Post Construction

Project Performance Report

Description:

Project Performance Report: When requested by CPDC, the campus shall submit a Project Performance Report at completion of the project. Submit the Capital Project Management Checklist, completed per the Project Performance Report Instructions.

References:

• SUAM Section 9836​
  

Forms/Templates:

• Project Performance Report Instructions​
  
• Capital Project Management Checklist​​
  

Project Audit

Description:

Project Audit: Audit and Advisory Services (A&AS) may conduct a project audit on the project. CPDC and the campus will be notified when the project is selected for audit. 

The campus is required to open their project files and to be responsive to the ​auditor's questions. A&AS will issue a preliminary audit report to the campus and will request review and submittal of Management Responses. 

A final audit report will be presented to the Board of Trustees and will filed on the A&AS site.

Claims

Description: It is critical to resolve all disputes for cost and time during construction as contemporaneously as possible to the event(s). 

Timely resolution simplifies negotiations; is more likely to include individuals involved in the events when memories are fresh; facilitates better understanding with fewer people involved at a lower level; and creates a track record of solutions making future negotiations more successful. 

Claims for disputed work, contract time delay and assessment of liquidated damages are common at the completion of a construction project. The Construction Administrator should conduct a final review of the Contractor's claim(s) at the completion of the project and attempt to resolve any disputed cost and time impacts and to equitably address the merits of a contractor's claim(s). 

The closeout claims negotiation process is as follows: 

1. Commitment by all parties to resolve the issues at the campus level is critical. Early solutions are less expensive. Every effort should be made to demonstrate willingness to understand others' point of view and reach an agreement. The campus should be careful to set the tone for the meeting(s), keeping all communications highly professional, demonstrating the behavior that is expected. Conduct your closeout claims negotiation sessions at the job site or campus in case you need to view project conditions. Assemble the appropriate parties, including Contractor (Superintendent , Project Manager, and Project Executive), Architect, engineering consultant (if appropriate), campus representatives (Project Manager, Construction Inspector, Construction Administrator), and, if desired, a representative from CPDC Construction Services. It is critical that all decision makers required to authorize a settlement are in attendance. 

2. The meeting(s) may be held in two phases, the first with all parties except the Contractor. This will allow a consensus of opinion to be reached and some guidelines laid down which the Construction Administrator may use to negotiate with the Contractor. The second meeting with the Contractor should be led by the Construction Administrator, who should negotiate in accordance with the guidelines. An Inadmissible Settlement Negotiations Agreement should be signed by all parties to facilitate open and transparent communication and to assure that any offers made during negotiations may not be used in later mediation or litigation. Contractor and campus break-out sessions may be held in order to allow parties to come closer to agreement. It is important that the final completion date and any resultant liquidated damages or extended overhead should be negotiated and agreed upon.
3. Memorialize the meeting and settlement with a letter and a change proposal with all pertinent backup that indicates concurrence by the Architect and campus representative. If the Architect was not a party to the claim or negotiations, then s/he may be excluded, but every effort should be made to include the Architect.
4. The resultant change proposal must be signed by the appropriate university official, documenting concurrence with the settlement. The Construction Administrator’s role is to negotiate in good faith the best possible settlement and to get approval as appropriate.
5. Include CSU CPDC Milestone Settlement language on any resultant change order indicating that the included items (claims) were negotiated and settled, with the date. Indicate that the resultant settlement is a "Global Settlement and Resolution" as it may not reflect actual costs for the issues. Consult with CPDC's Chief of Construction Services before issuing settlement change orders. If the Settlement Language requires modification, consult with the Office of General Counsel for approval on the changes.
6. If the resultant settlement resolved all claims under the project, then so state.
   
7. If a time extension is negotiated for appropriate purposes, then so state.
8. If there is a time overrun that has not been extended, liquidated damages may be assessed, but are not required and may be negotiated. Liquidated Damages affect a contractor's bonding capacity, making contractors willing to concede on change order costs or other cost concessions that may negate the need for Liquidated Damages.
9. If campus negotiations are not successful, CPDC's Chief of Construction Services should be brought in to act as a mediator and go-between to help facilitate a solution. Every effort should be made to resolve claims before legal counsel for the CSU or the Contractor are brought in.

Claims Review Board: If a contractor’s claim was not resolved through negotiation, then an official hearing may be scheduled following the completion of all work and acceptance of the project. CPDC shall be contacted, who will then organize and chair the hearing. 

The hearing is scheduled after completion so that only one such hearing will be held for a given project. The hearing shall be relatively formal and structured but without legal counsel. The results will be in writing and transmitted formally to all involved parties. 

CPDC has two written procedures for administering a Contractor’s Claims Review Board hearing: Part I describes the process for filing a claim and describes the Claims Review Board process and may be shared with the contractor. Part II is an internal document that describes the duties of the Board participants and should not be shared with the contractor.

It is important to have three members on the Board who have a good working knowledge of construction and the CSU's General Contract Conditions. It is also important to have a neutral board who has not been involved with the project or decisions leading to the claim(s). Written claims review board procedures have been prepared for CPDC application. They propose composing a board with CPDC professional staff and campus staff, as necessary, to result in an appropriately composed, neutral board.

References:

• SUAM Section 9833-9833.04
  
• Appendix D for Claims Review Board Procedures, Parts I and II
  
• Contract General Conditions Articles 5.02 and 7.01
  

Forms/Templates:

• Agreement Regarding Inadmissible Settlement Negotiations (Form 703.25)​
• One-Way Global Settlement Change Order (Form 703.04.1)
• Two-Way Mutual Release Global Settlement Change Order (Form 703.04.2)
• Milestone Change Order (Form 703.04.M)
• Simple Global Settlement Change Order (Form 703.04.S)
• Guarantee Quality & Performance (Form 702.19)
  

Guarantee, Warranty & Latent Defects

Description:

Guarantee: Each public works contract awarded by the Trustees has a guarantee period of one year, during which time the performance bond is in force. Certain individual items of work or equipment have longer guarantee periods. During the guarantee period, the campus is responsible to police the facility for malfunctions and to notify Contractor of all items judged to be Contractor's responsibility, and is issued in writing a "Notice to Perform." Refer to SUAM 9840-9842 for more information. 

Warranty Item: Though the letter of the contract requires notification of warranty items to come from the Trustees to the Contractor, the Construction Administrator is usually the most knowledgeable to communicate warranty items to the Contractor. 

The letter can come from the Director/AVP or Vice President if emphasis is needed and should quote the relevant section of Contract General Conditions (Article 8) and be copied to the bonding company, when deemed necessary and approved by the CSU Office of General Counsel. The Contractor has 10 days to perform, otherwise the Trustees may call in the bonding company or have the campus perform the work and back-charge the Contractor. 

Latent Defect: The Construction Administrator shall contact the contractor in the event of discovery of a latent defect on a project, and make arrangements for the contractor to repair the problem, pursuant to Article 8.06 of the Contract General Conditions. The Latent Defect period runs 10 years from the Notice of completion.

References:

• SUAM Sections 9840 et seq.
• Law of D&C, May 2019-Section VIII, Claims Against the Contractor
• Code of Civil Procedure, Section 337.15